Observations and provocations from The Times' Opinion staff

Elena Kagan on fruits and vegetables

July 1, 2010 | 5:17
pm

Never trust a video that gives a politician the last word.

Provocatively titled "Kagan Declines to Say Gov't Has No Power to Tell Americans What to Eat," this YouTube video provides just the first minute or so of an exchange between Sen. Tom Coburn (R-Okla.) and Supreme Court nominee Elena Kagan (D-Obama) about the Constitution's "Commerce clause." In it, Coburn asks Kagan whether it would violate the Commerce clause if he somehow persuaded his colleagues to pass a bill requiring Americans to "eat three vegetables and three fruits, every day." Kagan reaches first for a laugh line -- "Sounds like a dumb law" -- before saying, somewhat pointlessly, that "courts would be wrong to strike down laws that they think are senseless just because they're senseless." The clip then has Coburn railing on about how the broad interpretation of the Commerce clause by lawmakers and judges is a threat to liberty.

And then it ends. But Kagan had more to say on the subject of fruits and vegetables, and Coburn offered some interesting nuggets of his own about his fervent wish for an precedent-erasing judiciary.

Politico picked up where the clip left off, offering a partial transcript of the mini-debate. Kagan noted that courts would question whether ordering people to eat fruits and vegetables had a substantial connection to interstate commerce. After all, she observed, non-economic activity is beyond the reach of the Commerce clause. Throwing the ball back in Coburn's court, she said, "We can come up with sort of, you know, just ridiculous-sounding laws, and the principal protector against bad laws is the political branches themselves."

But Coburn didn't like the idea of lawmakers being accountable for their own actions. He pressed Kagan to join him in a vision of a vigorous, clock-rewinding court that held lawmakers in check. As he put it, "What we find ourselves today on the Commerce clause is through a period of precedent-setting decisions we have allowed the federal government to become something that it was never entitled to become. And with that a diminishment of the liberties of the people of this country both financially and in terms of their own liberty."

Somehow I don't think it takes an expansive reading of the Commerce clause to wage two wars off-budget, cut taxes without cutting spending, and then go hundreds of billions of dollars deeper into the hole when a recession hits. But I digress. Kagan's answer illustrates the difference between how conservatives define judicial activism (advancing equity) and how liberals do (rejecting precedents):

I do think that very early in our history -- and especially I would look to Gibbons v. Ogden, where Chief Justice Marshall did in the first case about these issues -- essentially read that clause broadly and provide real deference to legislatures and provide real deference to Congress about the scope of that clause. Not that that clause doesn’t have any limits, but that deference should be provided to Congress with respect to matters that affect interstate commerce.

By the way, the courts have already recognized that insurance is a matter of interstate commerce. Requiring people to buy it can be seen as a necessary companion to regulations that require insurers to offer policies to everyone, regardless of pre-existing conditions. Without the mandate to buy coverage, people would game the system by waiting to purchase insurance until they needed treatment. The sale of produce is interstate commerce, too, but it's hard to come up with a legitimate regulatory regime that relies on a mandate that people eat their fruits and vegetables.